June 2018 Newsletter – School Districts
Hitting Pause on a Classified Employees Probationary Period
A recent decision in the California Fourth Appellate District has answered the question, “can our district extend the probationary period of a classified employee that was out on medical leave?” In Hernandez v. Rancho Santiago Community College Dist. (May 3 2018) 22 Cal.App.5th 1187, the court was asked whether a probationary classified employee, who was released from employment prior to completing the required one (1) year probationary period, was afforded protected status while on disability leave. The court found that the one-year probationary period could be extended while the employee was on temporary disability leave. Affirming a trial court decision (and $723,746 in damages!), the court of appeal found that the District was not strictly bound to the statutory probation period, which could be extended as a “reasonable accommodation” under the Fair Employment and Housing Act (“FEHA”).
While the Hernandez decision involved a community college district, the statute governing classified employees at community colleges (Educ. Code § 88013) is similar enough to the corresponding statute governing K-12 districts (Educ. Code § 45113) that we believe that a court would reach the same result in the K-12 context. Courts will often look to decisional law in one area to inform their analysis in the other. For example, courts have interpreted K-12 statutes by looking to the community college context in determining the scope of classified employee employment rights. (See Tucker v. Grossmont Union High School Dist. (2008) 168 Cal.App.4th 640.) In turn, Tucker was applied again to community college statutes. (See Poveda v. Southwestern Cmty. Coll. Dist. (2014) Cal.App. Unpub. LEXIS 329.) In some places, the Legislature has evidenced an intent to “occupy the field” and supersede collective bargaining on subjects; the one-year maximum probationary period is one such subject. (See United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504.)
The facts of Hernandez were largely undisputed. An employee who worked for the District off-and-on for several years as a temporary employee was injured in an on-the-job accident while in her temporary position. Subsequent to her injury, she applied for and was hired to a full-time classified position. Under the collective bargaining agreement, the employee was required to serve a one-year probationary period to become permanent and was required to be evaluated at three-, seven-, and eleven-months. However, during her probationary period, the plaintiff employee was not evaluated at the three- or seven-month intervals, nor were any issues with job performance ever communicated to her. Subsequently, more than halfway through her probationary period, she learned that she would require surgery to correct a broken finger from the injury she previously sustained as a temporary employee. Facing a four-month recovery, she consulted the District to discuss her options and was told by risk management that she could not be fired. The District further agreed to provide her with time off for the surgery. However, just before the expiration of her one-year probationary period, and before she returned to work, the District notified her that her employment was terminated because her leave prevented the District from conducting her probationary performance evaluation at the eleven-month milestone.
In affirming the trial court’s decision, the appellate court indicated that Education Code § 88013 did not require the District to terminate the employee or award her permanency on the anniversary of her hiring. Instead, because the District permitted the leave and was aware of the employee’s temporary disability, the Court held that the District could have reasonably protected its right to evaluate the employee during her probationary period by either 1) deducting the time she was unable to work from the probationary period, or 2) extending the probationary period by the number of days the employee was unable to work.
Instead, the Court found that the District violated FEHA and the employee’s right to hold employment without discrimination based on a physical disability. In analyzing the District’s actions, the court acknowledged that the District acted reasonably in providing time off for surgery. However, the court determined that “the accommodation can hardly be considered reasonable when it included the consequence that she would lose her job.” The Court further held that the District was required to engage the employee in a good-faith interactive process to determine an effective reasonable accommodation. However, it found that because the District’s accommodation led directly to the termination of her employment, it was neither effective nor reasonable. Citing Bell v. City of Torrance (1990) 226 Cal.App.3d 189, the court rejected the District argument that Education Code section 88013 prevented the District from extending the probationary period beyond one year.
The court’s decision indicates that the probationary period prescribed by the Education Code is not absolute and does not relieve a district of its duty to attempt to find a reasonable effective accommodation under the FEHA when a probationary employee suffers a temporary total disability requiring an extended absence from work. It further appears to allow district’s to extend an employee’s probationary period as part of a timely interactive process and an effective reasonable accommodation.
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